IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009305 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his official military records to show that his migraine headaches, which caused him to be discharged by reason of physical disability, did not exist prior to service (EPTS).  He also requests that his Reentry Eligibility (RE) code be changed from RE-4.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.  

2.  The applicant states that at the time of discharge medical personnel stated that he was a boxer prior to enlisting and that this caused his headaches.  He states that he does not recall telling the Army doctor he had headaches 
18 months prior to October 1971.  He states that he did not have migraine headaches until approximately 6 weeks after his jaw was broken during an Army boxing match.

3.  The applicant provides a copy of a Clinical Record Consultation Sheet, dated 2 February 1971; and three letters from three different individuals who attended the high school that the applicant attended attesting to the fact that the high school the applicant attended did not have boxing as a sports activity or as part of the school curriculum.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 16 December 1949.  He obtained his high school diploma in 1968 and on 17 March 1970, he underwent a pre-induction examination.  The Report of Medical Examination shows he made no indication that he had ever experienced migraine headaches. 

3.  On 18 May 1970, the applicant was inducted into the Army of the United States in Raleigh, North Carolina, at age 20.  

4.  On 13 January 1971, nonjudicial punishment was imposed against the applicant for feigning a headache for the purpose of avoiding duty.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

5.  The Clinical Record Consultation Sheet that the applicant submitted shows that, on 2 February 1971, he was examined by medical personnel and that at the time of his examination he stated he had been experiencing headaches for 18 months.  The Clinical Record Consultation Sheet reflects that the applicant was a boxer and that he had many head injuries; that the headaches for which he was evaluated for, on 2 February 1971, began in October 1970 after fracturing his jaw.  He indicated that he had used a variety of analgesics with no relief.  The applicant indicated that the severity of his headache was decreased by “Cafergot.”  The applicant’s physical examination was negative and his brain scan was normal.  The Clinical Record Consultation Sheet indicates it was the doctors impression that the applicant was probably experiencing migraine headaches.  The applicant was told if the Cafergot did not provide more relief, he would be recommended for a medical evaluation board (MEB) for his EPTS condition.

6.  The applicant’s MEB proceedings are not available for review.  However, on 17 February 1971, the applicant submitted a request for expeditious discharge under the provisions of Army Regulation 635-40, due to physical disability.  In his request he stated that he had been informed that based on the findings and recommendation of a medical board, he was considered to be unfit for retention in the military service by reason of physical disability which had been found to have EPTS and was neither incident to nor aggravated by his military service.  He stated that he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the Army separated for physical disability.  He stated that he understood that this action included consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations; and that he was electing not to exercise his right.  The applicant signed his request for expeditious discharge indicating that he understood he would be separated by reason of physical disability that was EPTS and would receive a discharge of the type commensurate with the character of his service, as determined by the officer designated to affect his discharge.

7.  The facts and circumstances surrounding his discharge are not available.  However, the applicant’s records show he was honorably discharged, on 25 February 1971, under the provisions of Army Regulation 635-40, chapter 9, due to a physical disability that was EPTS as established by a medical board and the individual made application for discharge by reason of physical disability.  He had completed 9 months and 8 days of net active service and he was assigned an RE code of 4.

8.  The three letters that the applicant submitted are from individuals attesting to the fact that the high school the applicant attended did not have boxing as a sports activity or as part of the school curriculum.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that if the Physical Evaluation Board (PEB) determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a Soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a Soldier has an unfitting EPTS condition which was not service aggravated, the Soldier is separated without disability benefits.  

10.  Pertinent Army regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  An RE code of 4 applies to a person with a non-waivable disqualification.

11.  Army Regulation 601-210 also provides the guidance for the issuance of RE codes upon separation from active duty.  It states, in pertinent part, that these codes are not to be considered derogatory in nature, they are simply codes that are used for identification of an enlistment processing procedure.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his official military records should be corrected to show his migraine headaches did not exist prior to service.  He also contends that his RE code 4 should also be changed.

2.  The applicant’s contentions along with the three letters that he submitted have been considered.  It is noted that the applicant was over 20 years old when he was inducted, two years after he graduated from high school, and the significance of the letters attesting to the fact that his high school did not have boxing as a sports activity is not understood.  In addition, the Clinical Consultation Sheet he submitted in support of his application shows that he had been a boxer and had been experiencing headaches for 18 months.

3.  The evidence of record shows that, on 17 February 1971, he submitted a request for expeditious discharge under the provisions of Army Regulation     635-40, due to physical disability and in his request, he stated that he had been informed that based on the findings and recommendation of a medical board, he was considered unfit for retention in the military service by reason of physical disability which had been found to have been EPTS and was neither incident to nor aggravated by his military service.  

4.  The applicant signed his request for expeditious discharge indicating that he understood he would be separated by reason of physical disability that was EPTS and would receive a discharge of the type commensurate with the character of his service.  The fact that he now contends he did not experience headaches prior to his jaw being broken and that he does not recall telling the doctor he suffered from headaches prior to induction is not substantiated by the evidence of record.   

5.  Additionally, the applicant was separated and assigned an RE code in accordance with the applicable regulation and there appears to be no basis for removal of those disqualifications which established the basis for the RE code 
of 4.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090009305



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ABCMR Record of Proceedings (cont)                                         AR20090009305



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